Kerala High Court
Thomas E.P vs Paulosekutty K.A on 28 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MACA NO. 2164 OF 2013
THE AWARD DATED 01.05.2013 IN OPMV NO.264 OF 2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANTS/PETITIONERS:
1 THOMAS E.P.
S/O PHILIPOSE, RESIDING AT EDACHERIPARAYIL HOUSE, VELIYANADU
KARA, EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY
2 ANILA THOMAS
D/O THOMAS, RESIDING AT EDACHERIPARAYIL HOUSE, VELIYANADU
KARA, EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY
3 APPU THOMAS
S/O THOMAS, RESIDING AT EDACHERIPARAYIL HOUSE, VELIYANADU
KARA, EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY
4 MARIYA
W/O THEVAN, RESIDING AT MOOLELPANATHIL HOUS,E KAIPATTOOR,
OLIPURAM, EDAKATTUVAYAL, MULANTHURUTHY
BY ADV SMT.ANEY PAUL
RESPONDENTS/RESPONDENTS:
1 PAULOSEKUTTY K.A.
S/O ABRAAM K.V KARIKUNNATHU HOUSE, MARITAZHAM P.O,
KANJIRAMATTOM 682315
2 MANOJ P.R.
S/O RAJAPPAN, PAYYATTIPILLIL HOUSE, PAMPAKUDA NEAR
PAMPAKUDA GOVT. SCHOOL, MAYMURY VILLAGE, MUVATTUPUZHA
TALUK, PIN-686 661
3 THE MANAGER
RELIANCE INSURANCE COMPANY LIMITED SL/3599, FOURTH
FLOOR,ELEZEBETH ALAXANDER MEMORIAL BUILDING, SHANMUGAM
ROAD, MARINE DIRVE, KOCHI 682031
BY ADV SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) FOR R1
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
2
OTHER PRESENT:
R3-SMT.LATHA
SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.06.2024, ALONG WITH MACA.2211/2013, 3299/2014 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MACA NO. 2211 OF 2013
THE AWARD DATED 01.05.2013 IN OPMV NO.263 OF 2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/APPELLANT:
THOMAS E.P.
S/O.PHILIPOSE, RESIDING AT EDACHERIPARAYIL HOUSE,
VELIYANADU KARA, EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY.
BY ADV SMT.ANEY PAUL
RESPONDENTS/RESPONDENTS:
1 PAULOSEKUTTY K.A.
S/O.ABRAHAM K.V., KARIKUNNATHU HOUSE, MARITHAZHAM P.O.,
KANJIRAMATTOM-682315.
2 MANOJ P.R.
S/O.RAJAPPAN, PAYYATTIPILLIL HOUSE, PAMPAKUDA NEAR
PAMPAKUDA GOVT.SCHOOL, MAYMURY VILLAGE, MUVATTUPUZHA
TALUK, PIN-686661.
3 THE MANAGER
RELIANCE INSURANCE COMPANY LIMITED XL/3599, FOURTH
FLOOR, ELEZEBETH ALAXANDER MEMORIAL BUILDING, SHANMUGAM
ROAD, MARINE DRIVE, KOCHI-682031.
BY ADVS.
SRI.ALEXY AUGUSTINE
SRI.GEORGE CHERIAN SR.
SMT.LATHA SUSAN CHERIAN
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
4
SRI.T.K.SHAJAHAN
SMT.K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.06.2024, ALONG WITH MACA.2164/2013 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MACA NO. 3299 OF 2014
AGAINST THE AWARD DATED 01.05.2013 IN OPMV NO.264 OF 2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/1ST RESPONDENT:
PAULOSEKUTTY
S/O.ABRAHAM, KARIKUNNATHU HOUSE, MARITHAZHAM
POST,KANJIRAMATTAOM, PIN - 682 315, ERNAKULAM DISTRICT.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENTS/PETITIONERS & RESPONDENTS 2 AND 3:
1 THOMAS E.P
S/O.PHILIPOSE, EDACHERIPARAYIL HOUSE,
VELIYANADKARA, EDAKKATTUVAYAL VILLAGE,
MULANTHURUTHY,ERNAKULAM DISTRICT - 682 313.
2 ANILA THOMAS
D/O.THOMAS, EDACHERIPARAYIL HOUSE, VELIYANAD
KARA,EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY,
ERNAKULAM DISTRICT - 682 313.
3 APPU THOMAS
S/O.THOMAS, EDACHERIPARAYIL HOUSE, VELIYANAD
KARA,EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY,
ERNAKULAM DISTRICT - 682 313.
4 MARIYA
W/O.THEVAN, RESIDING AT MOOLELPANATHIL
HOUSE,KAIPATTOOR, OLIPURAM,
EDAKKATTUVAYAL,MULANTHURUTHY, PIN - 682 313.
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
6
5 MANOJ P.R.
S/O.RAJAPPAN, PAYATTIPILLIL HOUSE,PAMPAKUDA POST,
NEAR PAMPAKUDA GOVERNMENT SCHOOL, MAYMURY
VILLAGE, MUVATTUPUZHA TALUK, PIN-682313.
6 THE MANAGER
RELIANCE GENERAL INSURANCE COMPANY
LIMITED,XL/3599, FOURTH FLOOR, ELIZABETH
ALEXANDER MEMORIAL BUILDING, SHANMUGHAM ROAD,
MARINE DRIVE, COCHIN - 682 031.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.06.2024, ALONG WITH MACA.2164/2013 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MACA NO. 3300 OF 2014
AGAINST THE AWARD DATED 01.05.2013 IN OPMV NO.263 OF 2007 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/1ST RESPONDENT:
PAULOSEKUTTY K.A
AGED 43 YEARS
S/O.ABRAHAM, KARIKUNNATHU HOUSE, MARITHAZHAM POST,
KANJIRAMATTOM, 682 315, ERNAKULAM DISTRICT.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)
RESPONDENTS/PETITIONER & RESPONDENTS 2 AND 3:
1 THOMAS E.P
S/O.PHILIPOSE, EDACHERIPARAYIL HOUSE, VELIYANAD KARA,
EDAKKATTUVAYAL VILLAGE, MULANTHURUTHY, ERNAKULAM
DISTRICT. 682 315.
2 MANOJ P.R
S/O.RAJAPPAN, PAYATTIPILLIL HOUSE, PAMPAKUDA POST,
NEAR PAMPAKUDA GOVERNMENT SCHOOL, MAYMURY VILLAGE,
MUVATTUPUZHA TALUK 682 315.
3 THE MANAGER
RELIANCE GENERAL INSURANCE COMPANY LIMITED, XL/3599,
FOURTH FLOOR, ELIZABETH ALEXANDER MEMORIAL BUILDING,
SHANMUGHAM ROAD, MARINE DRIVE, COCHIN 682 031.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.06.2024, ALONG WITH MACA.2164/2013 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
8
SOPHY THOMAS, J.
=====================
MACA No. 2164 & 2211 of 2013,
MACA No. 3299 & 3300 of 2014
========================
JUDGMENT
Dated this the 28th day of June, 2024
These appeals are directed against the common judgment
in OP (MV) Nos. 264 & 263 of 2007 on the file of the Motor Accidents
Claims Tribunal, Muvattupuzha.
2. MACA No. 2164 of 2013 is filed by the claimants in OP (MV)
264 of 2007, and MACA 2211 of 2013 is filed by the claimant in OP
(MV) 263 of 2007. They are impugning the common award on the
ground of inadequacy of compensation. MACA No. 3299 of 2014 and
3300 of 2014 are filed by the 1st respondent/owner against the
recovery ordered against him.
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
3. On 28.09.2006 while the claimant in OP (MV) No. 263/2007,
Sri. Thomas and his wife were travelling in a motorcycle through
Thottapady - Vattapara Public Road, KL-39/765 JCB driven by the
2nd respondent in a rash and negligent manner, dashed against the
motorcycle, and both of them fell down on the road. The pillion rider,
Smt. Leela sustained very serious injuries to which she succumbed
on her way to hospital. Her husband Mr. Thomas also sustained
serious injuries, including compound depressed fracture of right
temporal bone with underlying contusion, cerebral oedema etc.
4. The legal heirs of deceased Leela filed OP (MV) No. 264 of
2007, and husband of the deceased Sri. Thomas who sustained
injuries in the accident, preferred OP (MV) No. 263 of 2007.
5. In OP (MV) No. 264 of 2007, learned Tribunal awarded
Rs.4,97,800/- against the claim of Rs.7,00,000/-, and in OP (MV) No.
263/2007, the Tribunal awarded Rs.3,68,700/- against the claim of
Rs.5,00,000/-. Alleging that the compensation awarded by the
Tribunal was inadequate in both the claim petitions, MACA Nos.
2164 of 2013 and 2211 of 2013 were preferred by the claimants.
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
6. The 1st respondent was the owner of the offending JCB, 2nd
respondent was its driver, and the 3rd respondent was its insurer. All
of them appeared before the Tribunal, and contested the case. The
3rd respondent insurer contended that the 2nd respondent driver of
the JCB had no valid driving licence as on the date of accident, and
hence there was violation of the policy conditions. Learned Tribunal,
finding that the driving licence possessed by the 2nd respondent as
on the date of the accident was a fake one, while directing the insurer
to deposit the compensation amount initially, permitted them to
recover the same from the owner of the offending vehicle, as he
permitted the 2nd respondent, to drive the offending JCB without
valid driving licence. Challenging the recovery ordered against him,
the owner has preferred MACA Nos. 3299 of 2014 and 3300 of 2014.
7. In the appeal, all the parties entered appearance through
their respective counsel.
8. Learned counsel for the appellants in MACA Nos. 2164 of
2013 and 2211 of 2013 would submit that the compensation awarded
by the Tribunal was not the just compensation, and so it has to be
enhanced. Learned counsel for the appellant/owner in MACA 3299 of
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
2014, and 3300 of 2014 would contend that he had verified Ext.B10
driving licence of the 2nd respondent issued from Manipur and he
was satisfied with his driving skills, and he had no information that the
driving licence possessed by the 2nd respondent was a fake one.
So, if at all, it is found that Ext.B10 driving licence was a fake one, he
cannot be mulcted with any liability to restitute the compensation paid
by the insurance company to the claimants. Learned counsel for the
insurer would contend that the compensation awarded is just and
reasonable and hence no enhancement is warranted, and the
recovery ordered against the owner is to be upheld.
9. Now this Court is called upon to answer whether there is any
illegality or impropriety in the impugned award warranting interference
by this Court.
10. Heard learned counsel for the appellants, and learned
counsel for the 3rd respondent insurer.
11. MACA No. 2164 of 2013 and MACA No. 2211 of 2013 can
be taken together for the purpose of convenience.
12. MACA No. 2164 of 2013 is filed by the legal heirs of
deceased Leela who was a 43 year old coolie worker. Learned
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
counsel for the appellants would submit that, though she was earning
monthly income of Rs.5000/-, learned Tribunal fixed her notional
income @ Rs.3000/- only which is on the lower side. Based on the
decision Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [AIR 2011 SC 2951],
learned counsel for the appellant would submit that, in the year 2006,
she was eligible to get her notional income fixed @ Rs.5,500/- per
month. Accepting that argument, but on finding that, the claim of
monthly income of the deceased in the original claim petition was
only Rs.5,000/-, this Court is inclined to fix her notional income @
Rs.5000/- per month. Since she was self employed, and below 50
years, 25% addition could be granted towards future prospects. So,
her monthly income could be taken as Rs.6,250/- (5000 + 25%).
Since she was having four dependants, ¼ is liable to be deducted
towards her personal expenses. If so, her monthly income is to be
taken as Rs.4,688/- for assessing compensation for loss of
dependency. The multiplier applicable is 14 as she was aged only 43.
So, the dependency compensation could be assessed as
Rs.7,87,584/- (4,688 x 12 x 14). On deducting Rs.4,36,800/- already
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
awarded by the Tribunal, the appellants are entitled to get
Rs.3,50,784/- towards enhanced compensation under the head of
loss of dependency.
13. Towards loss of consortium, learned Tribunal awarded
Rs.15,000/- and for loss of love and affection awarded Rs.30,000/-.
Based on National Insurance Company Ltd. v. Pranay Sethi
and Others, [(2017) 16 SCC 680], the appellants who are the
husband, children and mother of the deceased are entitled to get
Rs.40,000/- each, which will come to Rs.1,60,000/- in total. After
deducting Rs. 45,000/- (Rs.30,000 + Rs.15,000) awarded for loss of
consortium and loss of love and affection, the appellants are entitled
to get Rs.1,15,000/- as enhanced compensation under the head loss
of consortium.
14. Towards funeral expenses, learned Tribunal awarded only
Rs.5,000/-. Based on Pranay Sethi's case, the appellants are
eligible to get Rs.15,000/-. So they will get the balance Rs.10,000/- as
enhanced compensation under the head funeral expenses.
15. No amount was seen awarded by the Tribunal towards loss
of estate. Based on Pranay Sethi's case, the appellants are
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
entitled to get Rs.15,000/- towards loss of estate, and this Court is
inclined to award that amount towards loss of estate.
16. So the appellants in MACA No. 2164 of 2013 are entitled to
get enhanced compensation of Rs.4,90,784/-. But Rs.10,000/-
awarded by the Tribunal towards pain and suffering is liable to be
deducted as the deceased had an instantaneous death. So, after
deducting that amount, the appellants will get Rs.4,80,784/- as
enhanced compensation.
17. The compensation awarded in MACA No. 2164 of 2013 is
given in the table below:-
Head of claim Amount Amount Amount Difference to be
awarded by awarded in deducted drawn as
the Tribunal appeal in appeal enhanced
compensation
loss of dependency 4,36,800/- 7,87,584/- .... 3,50,784/-
loss of consortium 15,000/-
1,60,000/- ..... 1,15,000/-
love and affection 30,000/-
funeral expenses 5,000/- 15,000/- ..... 10,000/-
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
loss of estate ..... 15,000/- ...... 15,000/-
pain and suffering 10,000/- ...... 10,000/- 10,000/-
10,000/- 4,90,784/-
Total
The enhancement entitled is Rs. 4,80,784/- (4,90,784 - 10,000)
18. In MACA 2211 of 2013, learned counsel for the appellant
would submit that the injured Thomas was a 48-year-old coolie
worker earning monthly income of Rs.5,000/-. But learned Tribunal
fixed his notional income at Rs.3,000/- which is on the lower side.
Relying on Ramachandrappa's case cited above, the appellant was
eligible to get his income @ Rs.5,500/- per month. But his claim was
only Rs.5,000/- per month. Accepting the argument of the appellant,
this Court is inclined to fix his notional income Rs.5,000/- per month.
19. Learned Tribunal assessed his loss of earnings for a period
of 9 months. We have fixed his notional income @ Rs.5,000/-. So,
for 9 months, he will get Rs.45,000/- towards loss of earnings. After
deducting Rs. 27,000/- already awarded by the Tribunal, he will get
the balance amount of Rs.18,000/- as enhanced compensation
towards loss of earnings.
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
20. Towards pain and suffering, learned Tribunal awarded only
Rs.25,000/- against his claim of Rs.50,000/-. The appellant had
suffered compound depressed fracture of right temporal bone with
underlying contusion and cerebral oedema. There was fracture of
femur/lateral condyle and fracture and dislocation of distal phalanx of
little finger. He was hospitalized for 45 days. He was disoriented and
was not able to live an independent life, as he had severe memory
loss. Considering these facts, this Court is inclined to award
Rs.10,000/- more towards pain and suffering.
21. Towards loss of amenities, learned Tribunal awarded only
Rs.20,000/- against his claim of Rs.50,000/-. As he was disoriented
with memory loss, this Court is inclined to award Rs.5,000/- more
towards loss of amenities.
22. Towards bystander expenses, learned Tribunal awarded
only Rs.4,500/-. The appellant was hospitalised for 45 days, and even
after discharge, he might have been continuing with the assistance of
a bystander, as he had disorientation and memory loss. So this Court
is inclined to award bystander expenses for a period of 60 days @
300/- per day which will come to Rs.18,000/- in total. After deducting
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
Rs.4,500/- awarded by the Tribunal, he is eligible to get the balance
amount of Rs.13,500/-.
23. Towards extra nourishment, learned Tribunal awarded only
Rs.5,000/-. Considering the nature of injuries, period of
hospitalization, and also the disability suffered due to the accident,
this Court is inclined to award Rs.2500/- more under the head extra
nourishment.
24. The appellant had suffered 29% disability due to the injuries
suffered in the accident. Since he was aged 48, the multiplier
applicable was 13. On assessing compensation for disability, taking
his notional income as Rs.5,000/-, he is entitled to get Rs.2,26,200/-.
After deducting Rs.1,35,720/- awarded by the Tribunal, he is entitled
to get Rs. 90,480/- as enhanced compensation under the head
disability.
25. Learned Tribunal, even though awarded Rs.3,98,544/-, in
OP (MV) 263 of 2007, finding that the appellant/claimant was not
having a driving licence to ride the motorcycle, reduced the
compensation amount by 7.5%, and awarded only Rs.3,68,653/-. It is
pertinent to note that there was no finding to the effect that there was
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
contributory negligence from the part of the appellant/claimant. If he
rode his motorcycle without valid driving licence, he could have been
prosecuted for the same by the authorities concerned. Only because
of the fact that the claimant was not having valid driving licence at
the time of accident, unless there was a finding to the effect that,
there was contributory/composite negligence from the part of the
appellant/claimant, the Tribunal could not have reduced the award
amount by 7.5%. Even if the appellant was not having a valid driving
licence, we cannot jump into a conclusion, that he was negligent in
riding the motorcycle, and he also contributed towards the accident.
So, reduction of the award amount by 7.5% could not be justified.
The total compensation amount was Rs.3,98,554/- and its 7.5%
comes to Rs.29,890/-. The appellant is entitled to get that amount
also. Including that amount, the total enhanced compensation will
come to Rs.1,69,370/- (1,39,480 + 29,890).
26. The enhancement allowed in MACA No. 2211 of 2013 is
given in the table below:-
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
Head of claim Amount Amount Difference to be
awarded by awarded in drawn as
the Tribunal appeal enhanced
compensation
loss of earning 27,000/- 45,000/- 18,000/-
pain and suffering 25,000/- 35,000/- 10,000/-
loss of amenities 20,000/- 25,000/- 5,000/-
bystander expense 4,500/- 18,000/- 13,500/-
extra nourishment 5,000/- 7,500/- 2,500/-
disability 1,35,720/- 2,26,200/- 90,480/-
7.5% deducted by 29,890/- 29,890/-
the Tribunal
Total 1,69,370/-
27. The policy of the offending vehicle as on the date of the
accident is admitted by the 3rd respondent. So, the 3rd respondent is
primarily liable to pay the enhanced compensation amount to the
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
appellants in MACA No.2164 of 2013 as well as in MACA No.2211 of
2013.
28. Finding that, the 2nd respondent had no valid driving
licence at the time of accident, learned Tribunal while directing the
3rd respondent insurance company to deposit the award amount,
permitted them to recover the same from the 1st respondent/owner.
Against that finding, the 1st respondent/owner has preferred MACA
Nos.3299 of 2014 and 3300 of 2014. For the purpose of convenience,
these two appeals can be considered together.
29. In both these appeals, the appellant/owner would contend
that the 2nd respondent driver was having valid driving licence at the
time of accident, and Ext.B10 is his driving licence. So, according to
him there was no violation of the policy conditions, so as to order
recovery against him.
30. Learned counsel for the 3rd respondent insurer would draw
attention of this Court to paragraph 11 of the impugned award, in
which the Tribunal has found that Ext.B10 was not a genuine licence
issued by competent authorities. Ext.B4 was the driving licence
particulars of the 2nd respondent, produced by the insurer. As per the
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
entries in that document, the 2nd respondent was having LMV licence
since 08.11.2002 valid up to 07.11.2022. RW1, the Joint RTO of
Perumbavoor, deposed before the Tribunal, that the 2nd respondent
obtained a licence to drive an excavator with effect from 16.10.2006
only, i.e. after the date of accident. Subsequently, that licence was
cancelled on 23.06.2010 as it was a fake one. Learned Tribunal
raised a genuine doubt that, if the 2nd respondent was having
Ext.B10 licence for driving an excavator, which was valid till
24.10.2010, what prompted him to apply for another licence in the
year 2006, that too after the accident. So, learned Tribunal came to
the conclusion that Ext.B10 licence was not a genuine one.
31. In the appeal, the 2nd respondent/driver entered
appearance through Adv. Sri.T.K.Shajahan. But he has not come
forward to say about the genuineness of Ext.B10 licence. Whereas
the owner has produced photocopies of two documents as
Annexures A2 and A3 to say that Ext.B10 was a valid licence. Since
those documents are photocopies, prima facie it is not liable to be
accepted in evidence. Annexure A3 document is a 'No Objection
Certificate' seen to have been issued by Govt. of Manipur, but it does
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
not bear any date. Learned counsel for the 3rd respondent/insurer
vehemently opposed those documents. Since the original of those
documents are not seen produced, and the 2nd respondent driver
has not come forward to prove the genuineness of Ext.B10 licence,
this Court is not inclined to accept Annexures A2 and A3 documents.
32. Learned counsel for the appellants/owner would contend
that, when he appointed the 2nd respondent as the driver of his JCB,
he had verified Annexure B10 driving licence issued from Manipur,
and he was satisfied with the driving skills of the 2nd respondent.
Bonafide believing that, the driving licence of the 2nd respondent was
a valid one, he did not make any further enquiries as to the
genuineness of Ext.B10 document.
33. In Aisha v. Xavier 2022 (5) KLT 494, this Court held that
"when the owner of the offending vehicle, who bonafide believed the
driving licence of the driver as a genuine one, he is not liable to
restitute the compensation amount paid by the insurance company",
and there would be no breach of S.150 (2)(a)(ii) of the amended Act
32 of 2019. Since the owner was not aware of the fact that the driving
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
licence was a fake one, he cannot be mulcted with the liability to
restitute the insurance company.
34. In Rishi Pal Singh V. New India Assurance Co. Ltd. &
Others 2022 (4) KLT Online 1190 = 2022 ACJ 1868, the Apex Court
held that "the owner of the vehicle is expected to verify the driving
skills of the driver before appointing him, and once he is satisfied that
the driver is competent to drive, he is not expected to verify the
genuineness of his driving licence. The owner has no means to verify
the genuineness of the driving licence produced before him, provided
the owner finds the driver competent to drive the vehicle. When an
owner hires a driver, and the driver produces a driving licence, which
on the face of it looks genuine, the owner is not expected to find out
whether the licence has in fact been issued by a competent authority
or not. Insurance companies cannot expect owners to make enquires
with RTOs, which are spread all over the country, whether the driving
licence shown to them is valid or not. So, when the owner is satisfied
that the driver has a licence and he is driving competently, there
would be no breach of S.149 (2)(a)(ii) of the Motor Vehicles Act. The
insurance company then could not be absolved from their liability to
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
compensate the victim. Ultimately, if it is found that the licence was
fake, the insurance company will continue to remain liable, unless
they prove that the owner-insurer was aware or had noticed that the
licence was fake and still permitting that person to drive. When the
owner is not liable to restitute the insurance company, for the reason
that he was not aware of the fact that the licence of the driver was a
fake one, then, the liability will be shifted to the shoulders of the driver
due to whose negligence, the accident occurred".
35. Regarding privity of contract between the insurer and the
driver of the offending vehicle, in Oriental Insurance Co. Ltd Vs.
Sivan 2014 (1) KLT 1, a Division Bench of this Court held that "when
the driver of a vehicle commits a fraudulent and criminal act by
driving the vehicle with a forged licence, without the knowledge of the
owner, such driver cannot escape the liability towards the insurance
company on account of breach of contract. The driver is not a
stranger to the contract of insurance between the insurance
company, and the owner of the vehicle and there is a quasi-contract
between the driver and the insurer. The person liable in the first
instance is the driver himself. The owner becomes liable for the
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
negligence on the part of the driver, by applying the principles of
vicarious liability in an action for tort. The insurance company
becomes liable to indemnify the owner of the vehicle, because of the
contract of insurance entered into between the owner of the vehicle
and the insurance company. In fact, ultimately what the insurance
company takes upon themselves, by virtue of the contract of
insurance, is primarily the liability of the driver, for paying
compensation for his negligent act to the party, who suffered because
of his negligence. Therefore, it cannot be said that the driver is a
stranger to the contract of insurance between the insurance company
and the owner of the vehicle".
36. Since the owner was not aware of the fact that the driving
licence produced by the driver was a fake one, he is not liable to
compensate the victim. So the insurer cannot proceed against the
owner. But since the accident occurred due to negligence of the
driver and he has not come forward to prove the genuineness of
Ext.B10 licence with concrete evidence, he is the person liable to
compensate the victim. Since the offending vehicle was duly insured
with the 3rd respondent insurer, as far as an innocent third party is
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
concerned, primarily the insurer has to compensate him and
thereafter they can recover that amount from the driver, as there was
quasi-contract between the driver and the insurer. So the 3rd
respondent insurer has to compensate the appellants in MACA
No.2164 of 2013 and MACA No.2211 of 2013. Therefore, they can
recover that amount from the 2nd respondent/driver of the offending
JCB.
37. Hence, MACA No. 3299 of 2014 and MACA No. 3300 of
2014 filed by the owner, are liable to be allowed, as he had no
knowledge that the driving licence of the 2nd respondent was a fake
one, and he appointed the 2nd respondent as his driver, on verifying
his driving skills, and bonafide believing that Ext.B10 licence
produced by him was a genuine one.
38. In the result, MACA No. 2164 of 2013 and MACA No. 2211
of 2013 are allowed granting enhanced compensation, and MACA
No. 3299 of 2014 and MACA No. 3300 of 2014 are allowed, setting
aside the recovery ordered against the appellant/owner.
39. In MACA No.2164 of 2013, the 3rd respondent insurer shall
deposit enhanced compensation of Rs.4,80,784/- with 7% interest per
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
annum from the date of petition till the date of deposit before the
Motor Accidents Claims Tribunal, Moovattupuzha within a period of
two months from the date of receipt of a copy of this judgment.
Learned Tribunal shall disburse that amount to appellants 1 to 4 in
the ratio of 50:20:20:10, after deducting the liabilities if any, towards
tax, balance court fee, and legal benefit fund.
40. In MACA No.2211 of 2013, the 3rd respondent insurer is
directed to deposit enhanced compensation of Rs.1,69,370/- with 7%
interest per annum from the date of petition till the date of deposit
before the Motor Accidents Claims Tribunal, Moovattupuzha within a
period of two months from the date of receipt of a copy of this
judgment. Learned Tribunal shall disburse that amount to the
appellant after deducting the liabilities if any, towards tax, balance
court fee, and legal benefit fund.
41. On making such deposits as directed in paragraphs 39 and
40, the 3rd respondent insurer is at liberty to recover that amount
from the 2nd respondent driver, and his assets.
The appeals stand allowed to the extent as above, and no order
as to costs.
MACA No. 2164 & 2211 of 2013 and
MACA No. 3299 & 3300 of 2014
Sd/-
SOPHY THOMAS
JUDGE
RMV
